In the wake of unprecedented levels of interference between the White House and the traditionally-independent Justice Department, should almost all communications between the White House and DOJ be turned over to Congress twice a year?
Although the attorney general and other top Justice Department officials are nominated by the president, the department has long enjoyed a greater level of independence than perhaps any other cabinet agency. This is by design, in the hopes of ensuring an equal treatment and dispensation of federal laws untainted by politics.
President Donald Trump, though, has attempted to interfere with internal Justice Department happenings more than any president in decades. Notable examples include asking the department to prosecute his personal political enemies James Comey and Hillary Clinton, or asking the department to fire Special Counsel Robert Mueller, who was investigating Trump.
Those actions were only revealed through leaks to the press. Turning over communication between the White House and DOJ to Congress is not currently required under federal law.
What the legislation does
The Security from Political Interference in Justice Act would require both the White House and Justice Department archive all communications about any civil or criminal investigations that the department is undertaking, or could undertake. The legislation would not actually inhibit or limit any such communications.
The communications would not necessarily be disclosed to the public, although Congress could choose to for any communications it wants. This is similar to how any individual’s tax returns can be disclosed to Congress under a 1924 law, but those tax returns are not usually in turn released to the public.
The logs would be turned over to Congress twice a year, as well as to the department’s internal inspector general to report to Congress if any of the communications “raise concerns about improper political interference.”
Seven people are exempt from the required reporting: the president, vice president, counsel to the president, counselor to the president, attorney general, deputy attorney general, and associate attorney general. However, even any records related to those seven people must still be turned over in response to a congressional subpoena.
The House version was introduced on June 20 as bill number H.R. 3380, by Rep. Hakeem Jeffries (D-NY8). The Senate version was introduced the same day as bill number S. 1915, by Sen. Sheldon Whitehouse (D-RI).
What supporters say
Supporters argue that the legislation is necessary to protect the unprecedented muddying of a traditional independence and buffer between the White House and DOJ.
“Politics has no place in the Department of Justice’s enforcement of the law,” Sen. Whitehouse said in a press release. “Never before have we seen a president so heedless of the Department’s traditions and spirit, and so singularly focused on his own political and personal self-interest at the expense of justice. This bill would protect the Department against the likes of Donald Trump by shining a much-needed light on the channels that have enabled political influence to flow into the Department.”
“Justice Brandeis famously observed that sunlight is the best disinfectant. His words have been proven true time and time again,” Rep. Jeffries said in the same press release. “This bill would increase transparency surrounding communication between the White House and Department of Justice. It is a critical piece of our commitment to fulfill our constitutional duty as a check and balance on the executive branch.”
What opponents say
Opponents counter that the bill is unnecessary, may not make a difference in Congress, and distracts from the Justice Department’s primary mission.
“The bill requires reporting on some potentially very sensitive communications — communications whose public disclosure could compromise very important national-security and criminal investigations,” former Sen. Jon Kyl (R-AZ) wrote. “For example, if a United States Attorney in a rural district is investigating a potential crime of terrorism and communicates with the NSA, public disclosure of the fact of that communication may very well alert those who are the subject of the investigation that they are under surveillance.”
(The bill would not, in fact, necessarily guarantee public disclosure of any such communications, only disclosure to members of Congress.)
“It is no secret that a large number of these reports are never read by the committees who mandate their production,” Kyl continued. “And it should be obvious that the more resources that the Justice Department is forced to devote to these reports, the fewer that it may allocate to its core mission of investigating acts of terrorism and prosecuting federal offenses.”
Odds of passage
The House version has attracted four cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee.
The Senate version has attracted two cosponsors, both Democrats. It awaits a potential vote in the Senate Judiciary Committee.
Odds of passage are far higher in the Democratic-controlled House than the Republican-controlled Senate.
The most recent prior versions, introduced a dozen years ago in 2007 in the Senate and in the House, didn’t become law. It did pass the Senate Judiciary Committee on a bipartisan vote of 14 to 2, but never received a vote in the full chamber.